Citation Nr: 1823924 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 14-18 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent prior to May 9, 2016 and in excess of 70 percent after May 9, 2016 for posttraumatic stress disorder (PTSD) and panic disorder with agoraphobia. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran serviced on active duty from June 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans (VA) Regional Office (RO) in Cleveland, Ohio. In March 2016, the RO increased the Veteran's initial rating PTSD and panic disorder with agoraphobia from 30 percent to 50 percent, effective August 19, 2009. Then again, in January 2017, the RO increased the Veteran's initial rating for PTSD from 50 percent to 70 percent, to become effective May 9, 2016. As a result, the issues herein are characterized accordingly on the title page. In January 2016, the Board remanded the appeal to the RO for additional development. The matter has been returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to May 9, 2016, the Veteran's PTSD and panic disorder with agoraphobia were manifested by symptomology more nearly approximating occupational and social impairment, with reduced reliability and productivity. 2. Since May 9, 2016, the Veteran's PTSD and panic disorder with agoraphobia have been manifested by symptomology more nearly approximating occupational and social impairment, with deficiencies in most areas. 3. Service connection is in effect for PTSD and panic disorder with agoraphobia , currently rated as 70 percent disabling; ischemic heart disease, currently rated as 30 percent disabling, bilateral tinnitus, currently rated as 10 percent disabling, and bilateral hearing loss currently rated as 0 percent disabling. The Veteran's service connected disabilities currently combine to be 80 percent disabling. 4. The Veteran's service connected disabilities do not prevent him from securing and following a substantially gainful occupation with consideration of all factors bearing on the issue, to include his employment history, educational and vocational attainment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 50 percent, prior to May 9, 2016, for PTSD and panic disorder with agoraphobia, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for entitlement to an initial rating in excess of 70 percent, after May 9, 2016, for PTSD and panic disorder with agoraphobia, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.344, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Laws and Regulations Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 2012), 38 C.F.R. Part 4 (2017). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from a service-connected disability. 38 C.F.R. § 4.1 (2017). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.2. PTSD is evaluated under VA's General Rating Formula for Mental Disorders. Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Increased Rating In Excess of 50 Percent Prior to May 9, 2016 (PTSD/Panic Disorder) The Veteran contends that the initial rating assigned for PTSD and panic disorder with agoraphobia should be higher. The Veteran sought treatment with VA for his PTSD in August 2010. At that time the Veteran described feeling hopeless but denied feeling suicidal. He admitted to feeling homicidal at times and to having intrusive thoughts. The Veteran denied any difficulty with speech, memory, anxiety or unusual perceptions or hallucinations at this time. See August 24, 2010 VA Treatment Record. The Veteran also sought treatment from a private licensed individual social worker. In a letter dated August 31, 2010, the private social worker, stated that the Veteran presented with symptoms of "anxiety related to going to public places, being in an enclosed space, and having panic attacks. [The Veteran] reports that he struggles with sleeping, and that he is often irritable and on edge. [The Veteran] reports that he is often triggered and remembers the trauma of being in Vietnam during the war and this increases his feelings of anxiety." The Veteran received a VA psychological examination in April 2011. The VA examiner noted the Veteran's PTSD was severe and that the Veteran suffered from the panic disorder manifestation of PTSD. The Veteran reported symptoms of isolation, panic attacks, intrusive thoughts, anxiety, and difficulty sleeping. The Veteran reported that his panic attacks "used to occur two to three times a day." See April 2011 VA PTSD Examination at page 5. The Veteran denied experiencing depression but reported that he had anxiety and was "tense at family gatherings or in stores but not to the point of panic." Id. The VA examiner noted that the Veteran retired from his job to avoid claustrophobic reactions when his employer held meeting in the basement of the building. The Veteran also reported that he was bothered by flashbacks, loss of interest, disturbing dreams, trouble concentrating and feeling like his life has been cut short. He reported being moderately bothered by being over-vigilant and easily startled. See Id. at page 6. The Veteran reported that anxiety attacks made it impossible for him to relax away from home but that at work he would "tough it out". Id. at 7. In July 2012, the Veteran reported for VA treatment complaining of anxiety. At that time his wife was suffering from some medical issues and the Veteran was trying to cope with her condition. In August 2012 the Veteran reported his wife was doing better and that they were returning to the YMCA. The VA treatment examiner reported the Veteran had been swimming and doing other water exercises. See August 16, 2012 VA Mental Health Counselling Note. In September 2012, the Veteran reported for VA treatment and stated that he had to do deep breathing exercises in order to be comfortable attending the county fair. He also stated that he missed work due to his anxiety. See September 20, 2012 VA Psychiatry Note. In December 2012 the Veteran reported that to his VA treatment examiner that he was making progress in his treatment and that he though yoga could help cope with his PTSD. See December 10, 2012 VA Psychiatry Note. In January 2013, the Veteran reported to his VA treatment examiner that he was doing better with being "on guard". See January 22, 2013 VA Mental Health Counseling Note. He stated he was able to bowl and eat inside a fast food restaurant without having to take his medications. He also reported waking up in the middle of the night and not being able to go back to sleep. He stated that staying busy helped him to feel less anxious. In July 2013 the Veteran reported that he was starting a new PTSD group. In June 2014, the Veteran was seen for VA treatment and reported the he was not depressed and that his anxiety was well controlled. From June 2014 through April 2016 the Veteran reported coping better with his PTSD, although he did report in December 2014 that he had experienced a nightmare. The Veteran is competent to report his feelings and describe certain symptoms regarding his PTSD. Taking into consideration the Veteran's own descriptions of his symptoms, as well as the medical evidence of record, the Board finds that the Veteran's service-connected psychiatric disability manifested in symptoms most closely approximating those contemplated by the currently assigned 50 percent rating, causing occupational and social impairment with reduced reliability and productivity. Indeed, prior to May 9, 2016, the Veteran was found to have normal speech patterns and no issues with memory, hallucinations, depression, near continuous panic attacks, impaired impulse control, obsessional rituals, irritability with periods of violence, suicidal ideation (during the period under review), spatial disorientation, or problems keeping up his personal appearance or hygiene. While the Veteran's anxiety did impact his ability to function at his job in middle-management, he was not shown to have an inability to establish and maintain effective relationships. At an April 2011 examination, the Veteran reported a positive relationship with his wife of 39 years and children. He did not have friends outside the family, but had frequent family get-togethers. He reported participating in leisure activities such as gardening, reading, exercising and running. He had no history of assaultive behavior. Although the Veteran reported in August 2010 he had homicidal thoughts, this was not shown again throughout the entire appeal period, and therefore was not present at a frequency or duration that manifested in more severe social and occupational impairment, warranting the assignment of a higher rating. The Board recognizes that the April 2011 examiner specified that without medication, the Veteran would have deficiencies in most areas including work, school, family relations, thinking and mood (paralleling the criteria for a 70 percent rating). However, the examiner noted that with medication, the Veteran is able to attend family functions, go shopping, and do things with his wife. The examiner indicated that the anxiety is still present but not debilitating. Generally, VA does not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). However, DC 9411 expressly authorizes VA to take into account the ameliorative effects of medication when evaluating PTSD and other psychiatric disabilities. 38 C.F.R. § 4.130, DC 9411 (providing a noncompensable PTSD evaluation when, inter alia, "symptoms are not severe enough ... to require continuous medication" and a 10 percent PTSD evaluation when, inter alia, "symptoms [are] controlled by continuous medication"). As such, the Board finds that when rating psychiatric disabilities utilizing the General Rating Formula for Mental Disorders, the symptoms of a mental disorder are to be considered with the ameliorative effects of medication included. In this connection, the Veteran's symptoms, with medication, are shown to manifest in occupational and social impairment with reduced reliability and productivity, warranting the 50 percent rating, and do not reach the level of severity and impairment contemplated by higher 70 percent or 100 percent ratings prior to May 9, 2016. After thorough consideration, the Board finds that the preponderance of the evidence is against a rating in excess of 50 percent, prior to May 9, 2016 for the Veteran's service connected PTSD and panic disorder with agoraphobia. The Veteran's symptoms more nearly approximate the criteria for a 50 percent rating. Accordingly, the Board finds that a rating in excess of 50 percent for PTSD is not warranted prior to May 9, 2016. Increased Rating In Excess of 50 Percent after May 9, 2016 (PTSD/Panic Disorder) The RO has awarded a 70 percent rating for PTSD and panic disorder with agoraphobia effective May 9, 2016. This date corresponds with a May 9, 2016 VA examination report, in which the VA examiner indicated that the Veteran's disability manifested in "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement thinking and/or mood" in spite of medication. The Board finds that a higher schedular rating of 100 percent during this time period is not warranted, as total occupational and social impairment is not shown by the record. At the May 2016 VA examination, the Veteran was described as having anxiety, panic attacks more than once a week, flattened affect, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work like setting. The VA examiner had the Veteran complete the Beck Anxiety Inventor (BAI) and the Personality Assessment Inventory (PAI). The VA examiner reported the results indicated: "Even on mediation, this Veteran manifests significant and persistent symptoms of anxiety. He is tense and on edge much of the time, fearing the worst is going to happen. He notices and focuses on his many physical signs of anxiety, which include, but may not be limited to: indigestion, difficulty breathing, shaking, sweating, pounding heart, numbness and feeling hot, all the while fearing he may lose control. He doubts his ability to control his anxiety but relies on medication to assist him." In August 2016, the Veteran was treated at VA and reported that he was running, picking peaches and spending time with his son. He continued to report difficulty sleeping. Later in November 2016, he was treated again by VA. He was described as cooperative and reasonable. His speech was reported as normal and his language and memory were intact. His mood was described as euthymic and his affect described as congruent with his mood. No hallucinations, suicidal or homicidal thoughts were reported. Since May 9, 2016 the Veteran's PSTD and panic disorder with agoraphobia has not been manifested by symptoms including gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place or memory loss. He maintains a relationship with his wife, children and grandchildren. As discussed below, although his ability to work in the same capacity as a middle-manager is inhibited by his psychiatric disabilities, he is not shown to be incapable of working. Thus, total social and occupational impairment warranting the assignment of a 100 percent rating from May 9, 2016 is not shown by the record. In sum, the evidence of record is against a finding that the Veteran's service-connected psychiatric disabilities have been so severe as to warrant the assignment of initial ratings greater than 50 percent prior to May 9, 2016, and greater than 70 percent from May 9, 2016 to the present. As such, the benefit of doubt rule is not for application, and the appeal is denied. TDIU TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. At 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service connected disabilities but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). The Veteran contends that his service connected disabilities have caused him to retire and renders him unable to work. The Veteran maintains that he was forced to retire from his position as a quality inspector in 2007, when his employer began having meetings in the basement of the building, due to claustrophobia and anxiety. Service connection is in effect for PTSD and panic disorder with agoraphobia, currently rated as 70 percent disabling; ischemic heart disease, currently rated as 30 percent disabling, bilateral tinnitus, currently rated as 10 percent disabling, and bilateral hearing loss currently rated as 0 percent disabling. The service connected disabilities currently combine to be 80 percent disabling, as such, the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a) have been met. As noted above, in May 2016 the Veteran received a psychological examination from VA. The VA examiner opined that the Veteran would have difficulty working in an office environment where loud spontaneous noise is present and where he would be expected to socialize and interact with several people on a consistent basis due to his panic disorder. See May 2016 VA Psychological Examination at page 5. In particular, the examiner stated: The Veteran's inability to attend meetings in basements of buildings, ride in elevators, attend meetings or conferences where flying is required and function in any enclosed space is due to his Panic Disorder. The Veteran's discomfort working around a lot of people and thus preference to work by himself, his hypervigilance and his exaggerated startle response inhibited his ability to function adequately in his role as a middle manager. . . . It is the opinion of this assessor that the Veteran's symptoms would make it difficult for him to secure certain types of employment. He would have difficulty with an office job, one where there is spontaneous noise, one where he is expected to socialize and interact with a lot of people on a consistent basis. The Veteran would likely be able to perform one of his two previous jobs . . .as a crane operator or inspector. Thus, rather than his symptoms rendering him in a state of unemployment, his symptoms make it more likely that he would be underemployed, meaning he would be limited to jobs with lower pay." Id at 5. In April 2013, the Veteran was administered a VA hearing loss and tinnitus audio examination. When considering the functional impact of the Veteran's service connected bilateral hearing loss on his daily life, the VA audiologist noted that the Veteran stated "my family gets mad at me when because I misunderstand them when I do not have my hearing aids in." The VA audiologist further noted that the Veteran experienced no functional impact due to his service connected tinnitus. With respect to the Veteran's heart disease, while some physical impairment exists due to this disability-as contemplated by the current 30 percent rating-the evidence of record demonstrates that during the period under review, the Veteran has been shown to be able to swim at the pool, jog, bowl, exercise, do yoga and garden. He is not shown to be so inhibited by his heart disability that light lifting or walking at a job site would be prohibited. There is no suggestion in the medical evidence of record that the Veteran's heart disease in and of itself would prevent the Veteran from securing and following a substantially gainful occupation. The Veteran completed a VA Form 21-8940 in July 2011. The form states the Veteran worked as a quality inspector for approximately thirty-five (35) years. The Veteran is a high school graduate. He worked in middle-management, and had to stop working due to anxiety and claustrophobia working in meeting rooms with many co-workers. Based on review of the above, the Board finds that the evidence is against a finding that his service-connected disabilities alone prevent the Veteran from securing or following gainful employment. While it may be true that the Veteran can no longer work in management in the capacity he once did, where he was required to attend meetings and interact with other co-workers on a consistent basis, the evidence demonstrates that his service-connected disabilities would not prevent him from working in less stressful and interactive environments. His service-connected disabilities do not prevent light physical work. Moreover, his experience as a quality inspector and in management would make him capable of handling sedentary work, so long as he is not working in tight spaces with consistent interaction with co-workers. While the May 2016 VA examiner indicated that the Veteran may suffer a reduction in his annual income due to finding employment outside of his prior office environment, such does not mean that the Veteran would be only capable of securing marginal employment, or would otherwise be precluded by his service-connected disabilities from securing and following any other substantially gainful occupation, such as working from home or in another more isolating capacity. Thus, when considering the medical and lay evidence of record, the Veteran's prior education and experience, and the functional impact of each of his service-connected disabilities, the Board finds that the weight of the evidence is against the conclusion that the Veteran's service connected conditions, in and of themselves, have rendered him unable to secure or follow gainful employment. As such entitlement to a TDIU is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to the assignment of an initial rating in excess of 50 percent, prior to May 9, 2016, or in excess of 70 percent from May 9, 2016 to the present, for PTSD and panic disorder with agoraphobia, is denied. Entitlement to a TDIU is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs